Legalizing Marijuana Raises Legal Issues for Employers

February 23, 2017Minnesota

The Trend Towards Legalizing Marijuana Raises Legal Issues for Employers

The legalization of marijuana has gone from a pipe dream (sorry) to reality for some states in recent years. Employers, especially those with workers in different states, should be aware of the new legal ramifications for a social and political issue that will get plenty of scrutiny in the future.

Although the legalization of marijuana seems a recent development, there has been a trend toward acceptance of the drug for some time. In the U.S., decriminalization of marijuana started in 70’s and 11 states had decriminalization laws in the books by 1978. Medical cannabis was legalized in California in 1996. In 2012, Colorado and Washington became the first states to legalize recreational marijuana.

Currently, 28 states and the District of Columbia have laws legalizing marijuana in some form—with 8 states allowing legal recreational use.

In Minnesota, the use of medical marijuana became legal in 2014. Employers can find information on the law at a state website, which outlines the state’s Medical Cannabis Program. Minnesota’s statute creates a registry for patients and it limits marijuana prescriptions to conditions such as cancer, HIV, glaucoma, ALS, and a few other conditions. The administration of the drug is limited to specific forms: oils, liquids, pills, and vapors. Ingesting marijuana by smoking it is still illegal.

For employers, the new medical cannabis law raises several issues and questions, and it may take a few court challenges to really resolve some of them. The Minnesota law says employers may not  “discriminate against a person [who uses medical marijuana] in hiring, termination, or in any term or condition of employment, or otherwise penalize a person.”

This applies to people on the registry who disclose that fact, as well as any case where someone on the registry tests positive for cannabis. If they’re on the registry, they can’t be disciplined—unless the person used, possessed, or was impaired by the use of medical marijuana in the workplace or during regular hours of employment.

“Even people on the registry can’t come to work under the influence,” said Sarah Crippen, an employment lawyer with the Minneapolis law firm Best and Flanagan. Crippen spoke at a seminar hosted by Marsh and McLennan.

“Not a lot of problems have been reported by employers so far,” Crippen said of the Minnesota medical cannabis law. But she cautioned employers to tread carefully with the new law. For example, she recommended not asking questions if employees say they are on the registry. That information should be verified with the state and employers should have a written policy that spells out the employees’ rights and responsibilities under the medical marijuana law.

Complicating things is the fact that frequent users of marijuana (presumably for medical purposes in the case of Minnesota workers) build up higher levels of THC in their bodies. So testing may raise red flags, for example, if the company policy sets a limit on the amount of THC allowed. However, if the employee is not impaired, they probably should be allowed to do their jobs. “There’s a lag between science and the law,” Crippen said.

There are other complications. For example, the Minnesota statute’s anti-discrimination provision does not apply if failure to discriminate would violate federal law or result in loss of funds or licensure under federal regulations.

In addition, the new Trump administration appointed Jeff Sessions as U.S. Attorney General, and he has in the past been an opponent of marijuana legalization. Since some state and federal laws are essentially in conflict over the legality of marijuana, the use of marijuana, whether it be for medical or recreational purposes, could become a major political issue.

“It’s a very muddy area,” Crippen said at the seminar. “This is going to be subject to a whole lot of litigation and rocky roads for employers who have to deal with it.”

Employers who have workers in different states with different laws are going to have particular challenges. The bottom line is that workers cannot be allowed to be a safety risk to the public or other employees. “You have a responsibility not to be negligent,” Crippen notes. “If you think someone is impaired, pull them out and then figure out the next step.”